FEDERAL MAGISTRATES COURT OF AUSTRALIA
| UNICOMB & ANOR v CAIRNS | [2009] FMCA 202 |
| BANKRUPTCY – Application to set aside a Bankruptcy Notice – applicants claim that the sum specified in the Bankruptcy Notice is incorrect – claim to be confused and misled as to the precise amount being claimed by the creditor. |
| Bankruptcy Act 1966 (Cth), ss.40(1)(g), 41(5)(6A) Bankruptcy Regulations 1996 (Cth), reg.4.01(1)(b) Legal Profession Act 2004 (NSW), ss.368, 369, 379 Uniform Civil Procedures Rules2005 (NSW), r.36.10 |
| Adams v Lambert [2006] HCA 10 Practice & Procedure of the High Court and Federal Court of Australia (Sydney: Butterworths 1991) |
| First Applicant: | MICHAEL CHARLES UNICOMB |
| Second Applicant: | WARREN DONALD TURNER |
| Respondent: | SUZANNE ROSE CAIRNS |
| File number: | SYG 3120 of 2008 |
| Judgment of: | Lloyd-Jones FM |
| Hearing date: | 17 February 2009 |
| Delivered at: | Sydney |
| Delivered on: | 13 March 2009 |
REPRESENTATION
| Solicitors for the Applicants: | Mr M. Foley of Foleys Solicitors |
| Counsel for the Respondent: | Mr J. Baird |
| Solicitors for the Respondent: | Mullane & Lindsay Solicitors |
| Agent for the Respondent’s solicitors: | Sally Nash & Co. Solicitors |
ORDERS
The application filed by Michael Charles Unicomb and Warren Donald Turner on 27 November 2008 to set aside the Bankruptcy Notice (NN4001 of 2008) is dismissed.
The Applicant Debtors, Michael Charles Unicomb and Warren Donald Turner, are to pay the Respondent Creditor, Suzanne Rose Cairns, costs to be agreed or assessed.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG 3120 of 2008
| MICHAEL CHARLES UNICOMB |
First Applicant
| WARREN DONALD TURNER |
Second Applicant
And
| SUZANNE ROSE CAIRNS |
Respondent
REASONS FOR JUDGMENT
The proceedings
By an application filed on 27 November 2008, Michael Charles Unicomb and Warren Donald Turner (the Applicant Debtors) seek, pursuant to s.40(1)(g) of the Bankruptcy Act 1966 (Cth) (“the Act”), to have the Bankruptcy Notice (NN 4001 of 2008) issued by Suzanne Rose Cairns (the Respondent Creditor) set aside. The applicants dispute the validity of the Bankruptcy Notice on the ground that there was a misstatement of the correct amount and that they were confused as to the correct sum allegedly due to Ms Cairns. That application is opposed by Ms Cairns.
The following evidence was filed by the Applicants in these proceedings:
a)Affidavit of Michael Charles Unicomb sworn 27 November 2008;
b)Affidavit of Warren Donald Turner sworn 27 November 2008.
The following evidence was filed by the Respondent in these proceedings:
a)Affidavit of Anthony David Cavanagh sworn 12 December 2008;
b)Affidavit of Ashleigh Elizabeth John sworn 16 February 2009.
Background
In setting out the following background material I have either paraphrased or quoted directly from the affidavits of Messrs Cavanagh and Turner together with the oral submissions of Messrs Foley and Baird. I have not…
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- AGLC
- Unicomb & Anor v Cairns [2009] FMCA 202
- Case
- [2009] FMCA 202
- Decision Date
CaseChat Overview and Summary
The court had to determine whether the deficiencies in the Bankruptcy Notice rendered it invalid and whether these errors warranted setting aside the notice. The applicants contended that the notice did not meet the statutory requirements and thus should be disregarded. The respondent argued that the notice was substantially compliant and that any minor errors did not affect the validity of the notice.
The court found that while the notice was not perfectly compliant with the statutory requirements, the errors were minor and did not affect the validity of the notice. The court emphasised that the primary purpose of the notice, which was to inform the debtors of the creditor's intention to seek bankruptcy, was achieved. The court concluded that the notice was substantially valid and dismissed the application to set it aside. The applicants were ordered to pay the creditor's costs.
Orders
Orders of the court
1.
The application filed by Michael Charles Unicomb and Warren Donald Turner on 27 November 2008 to set aside the Bankruptcy Notice (NN4001 of 2008) is dismissed.
2.
The Applicant Debtors, Michael Charles Unicomb and Warren Donald Turner, are to pay the Respondent Creditor, Suzanne Rose Cairns, costs to be agreed or assessed.
Background
Background to the litigation
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Evidence
Evidence Before The Court
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Decision
Reasons for decision
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Ratio Decidendi
Legal Principle Established
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